Part 9.
TEXAS DEPARTMENT ON AGING
Chapter 260.
AREA AGENCY ON AGING ADMINISTRATIVE REQUIREMENTS
40 TAC §260.11
The Texas Department on Aging proposes an amendment to §260.11,
concerning Ombudsman Services.
The amendment is necessary to simplify and remove unnecessary language,
remove references to certain program procedures, eliminate references to program
performance measures that are now included in the proposed rule, remove direct
statements from federal requirements where they are referenced in the rule,
reference the risk assessment process that will be implemented for AAAs to
determine the level of facility coverage, and include updated names for the
Department and other organizations in accordance with the Department's merging
into the Department of Aging and Disability Services.
Nila Pedersen, Chief Accountant, has determined that for the first five-year
period the rule is in effect there will be no fiscal implications for individuals
required to comply with the rule as proposed.
Ms. Pedersen also has determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of enforcing
the rule will be an updated rule. There will be no effect on small or micro
businesses. There will be no effect to individuals required to comply with
the section as proposed. There will be no effect to state or local government.
Comments on the proposal may be submitted to Gary Jessee, Director Office
of AAA Support and Operations, Texas Department on Aging, P.O. Box 12786,
Austin, Texas 78711. All comments must be written and delivered via mail,
in person, or facsimile. E-mail and verbal comments cannot be accepted. All
comments must be received within 30 calendar days following the date of publication
of the proposed rules in the
Texas Register
.
The amendment is proposed under Texas Government Code, §2161.003,
which provides the Texas Department on Aging with the authority to promulgate
rules governing the operation of the Department.
The amendment also implements or affects Texas Human Resources Code, Subchapters
C and D, and §101.022(b) and §101.022(d). The amendment implements
Titles III and VII of the Older Americans Act of 1965, as amended, 42 U.S.C.A., §§3001,
et seq. (West 2002).
§260.11.Ombudsman Services.
(a)
Definitions. The following words and terms, when used in
this chapter, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Advocacy--Actions by or on the behalf of individuals and
groups to ensure that they receive the benefits and services to which they
may be entitled, and to ensure that their rights guaranteed by law are protected
and enforced.
[
(2)
[
[
(3)
[
(4)
[
(5)
[
(6)
[
(7)
[
(A)
direct involvement in the licensing or certification of
a long-term care facility or of a provider of a long-term care service;
(B)
ownership or direct investment interest in a long-term
care service;
(C)
is employed by or participates in the management of a long-term
care facility;
(D)
receives or has the right to receive, directly or indirectly,
remuneration under a compensation arrangement with an owner or operator of
a long-term care facility; or
(E)
has a family member residing in a long-term care facility
in which the representative is assigned or provides advocacy.
(8)
[
(9)
Facility Coverage--In-person
visit by a certified volunteer or staff ombudsman that involves contact with
residents, families, facility staff or others to identify and resolve complaints
and to help protect residents' health, safety, welfare and rights.
(10)
[
(11)
[
(12)
[
(13)
[
(14)
[
(15)
[
(16)
[
(17)
[
[
(18)
[
(b)
Purpose. The purpose of this rule is to
ensure
[
(c)
Philosophy
and Program Outcomes
. Persons who
are unable to care for themselves are entitled to dependable and consistent
care that includes:
(1)
a safe and healthy environment;
(2)
satisfaction of nutritional needs;
(3)
medical services, including physical, mental and psychosocial
rehabilitation;
(4)
an environment that promotes and maintains the individual's
dignity, self-determination, communication and protection of individual rights.
(d)
Eligibility. Residents of long-term care facilities aged
60 and above are eligible for Ombudsman services. Residents who are under
60 years of age and require advocacy services may be served if the advocacy
effort benefits 60-year-old and older residents.
(e)
Access. The Office shall
ensure
[
(f)
Responsibilities of contractors to operate local ombudsman
entities. Contractors shall be either an area agency on aging or an entity
designated
[
(1)
be an organization with a responsive and visible presence
in its region. It shall:
(A)
perform the duties as outlined in the OAA consistent with
these rules and
guidance provided
[
(i)
provide services to protect the health, safety, welfare
and rights of residents;
(ii)
ensure that residents have regular, timely access to representatives
of the program and have timely responses to complaints and request for assistance;
(iii)
identify, investigate and resolve complaints made by
or on behalf of residents that relate to action, inaction, or decisions, that
may adversely affect the health, safety, welfare, or rights of the residents;
(B)
be an expert and reliable source of information for families
seeking information on long-term care
options
[
(C)
develop a facility coverage plan based on Ombudsman
complaint/program experience and as a minimum consider nursing facilities
ranked at 50 or less in the DADS Quality Reporting System (QRS) overall rating
and consider fragile operating facilities that have trustee placement or are
scheduled to close as reported by DADS Long-Term Care Regulatory. Coverage
plans showing weekly, monthly and quarterly visitation schedules will be submitted
to the Office on a quarterly basis or more frequently if requested by the
Office in a format developed in cooperation with the network. The minimum
coverage schedule for stable operating facilities shall be quarterly
[
(D)
coordinate with state, regional and local agencies and
be recognized as an active member in the continuum of care in the communities
it serves;
(E)
have a mutually positive referral relationship with the
Department's Long-Term Care Regulatory
[
(F)
be a catalyst for community involvement in long-term care
facilities and be viewed as a credible source of information for the community,
the regulatory system, and the nursing home industry;
(2)
appoint the managing local ombudsman who shall
oversee
the local ombudsman program and provide leadership in a manner that achieves
program goals and objectives.
[
[
(3)
[
(A)
obtain or provide training to interns and certified volunteer
ombudsmen on handling complaints and dispute resolution;
(B)
have an intake process for receiving complaints
that
begins within two business days of receipt and as soon as possible for emergency
and safety situations
;
(C)
have a written process for certified volunteer ombudsmen
to identify and investigate complaints and concerns with referral to the managing
local ombudsman or his/her designee when assistance is needed;
(D)
have a written process for [
(E)
have a process for reporting complaint activity as required
by the local ombudsman entity and the Office; and
(F)
have a written process to assure that complaint and client-oriented
material remain confidential and is protected from access by unauthorized
persons.
(4)
[
(5)
[
(A)
analyze the number of volunteers needed for administrative
duties, other activities, and facility coverage;
(B)
recruit individuals to become certified volunteer ombudsmen
using all appropriate means and conduct appropriate follow-up with individuals
who expressed interest [
(C)
process applicants
that includes
[
(D)
provide state-approved initial certification training and
provide 12 hours of local continuing education each federal fiscal year, for
certified ombudsmen
[
(E)
provide state-approved orientation and training for Friendly
Visitors, if such a program is operated by the local ombudsman entity;
(F)
support and supervise volunteers and staff involved in
the local program during their service;
(G)
promote retention through regular communication, recognition,
motivational activities, and feedback of satisfaction with program services;
(H)
establish and use a grievance and complaint system; and
(I)
develop exit procedures to include input from the certified
volunteers and staff who leave the ombudsman program and notification to the
Office of their status with their written comments.
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
[
[
(12)
[
[
(g)
Responsibilities of Certified Volunteer Ombudsmen: A [
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 17, 2004.
TRD-200403338
Gary Jessee
Director of the Office of AAA Support and Operations
Texas Department on Aging
Earliest possible date of adoption: June 27, 2004
For further information, please call: (512) 424-6857
Chapter 815.
UNEMPLOYMENT INSURANCE
The Texas Workforce Commission (Commission) proposes amendments to
Chapter 815, Unemployment Insurance, Subchapter B, Benefits, Claims and Appeals, §815.15,
Parties with Appeal Rights; §815.28, Work Search Requirements; and to
Subchapter C, Tax Provisions, §815.109, Payment of Contributions and
Reimbursements.
Purpose
The purpose of the proposed amendments is twofold:
To clarify the applicability of the Unemployment Insurance (UI) administrative
rules regarding Work Search requirements to certain classifications of UI
claimants, by amending §815.15 and §815.28(a)(1), and
To define the due date for payment of additional taxes and interest resulting
from a chargeback adjustment by amending §815.109(e).
The Commission proposes amending §815.15, Parties With Appeal Rights,
to clarify that employers affected by the proposed §815.28(a)(1)(E)(v)
shall be parties of interest in any appeals proceedings resulting from circumstances
described in the new clauses.
The Commission proposes amending §815.28, Work Search Requirements,
to add three additional classifications of exempted claimants to those listed
in subsection (a)(1)(E), and to add a new subsection (a)(1)(F), clarifying
the applicability of work search requirements to claimants receiving extended
UI benefits and to individuals engaged in efforts to establish themselves
in a self-employment venture.
The Commission proposes amending §815.109, Payment of Contributions
and Reimbursements, to clarify that if an additional tax results from a chargeback
adjustment, the due date for the quarters affected by the adjustment is the
first day of the second month following the month in which the Agency mailed
the statement or letter notifying the employer of the change in tax rate and
additional tax due. The amendment shall also clarify that amounts due shall
be paid on or before the last day of this second month.
Background
§815.15. Parties with Appeal Rights.
The Commission proposes to amend §815.15 by adding §815.15(c)(6)
in coordination with proposed §815.28(a)(1)(E)(v). For claimants on a
temporary layoff of longer than 12 weeks, a waiver from work search requirements
may be requested by the separating employer and granted by the Agency Executive
Director. The Executive Director's decision in such a case will be subject
to review in any benefits appeal where a determination of ineligibility for
benefits results from the decision. Proposed §815.15(c)(6) will make
the requesting employer a party of interest in any such appeal. The Commission
proposes to conform §815.15(c) to eliminate the specific references to
paragraphs (1) - (5) and create a general reference to the paragraphs.
Proposed amendments to §815.28(a)(1)(E)
With few exceptions, UI claimants are required as a condition of eligibility
to register for Wagner-Peyser job matching and reemployment services. This
work registration requirement, often referred to as the "work test" for UI
eligibility, is the only specific "work search" requirement for regular UI
claimants set out in federal law. As a result, "work registration" and "work
search" are closely connected in law and historical precedent. Consequently,
the Commission finds that the terms should be applied and treated consistently.
Section 815.28(a)(1)(E) currently includes explicit exemptions to the rule's
requirements for two classifications of UI claimants:
(1) Individuals participating in a Shared Work Plan under Texas Labor Code §215.041(c),
and
(2) Individuals participating in Agency approved or Trade Act training
under Texas Labor Code §207.022 and §207.023.
Section 815.28(a)(1)(E) also excludes individuals otherwise exempted by
other law.
Based on other law and historical Commission precedent, three other classifications
of UI claimants are exempt from the Wagner-Peyser job matching registration
and reemployment services requirement. However, these claimants are not explicitly
exempted from the Work Search requirements of §815.28. These three classifications
of UI claimants are:
(1) Individuals on temporary layoff with a definite date to return to work,
and who are exempt from work registration requirements under §815.20(8)(A);
(2) Individuals who are members in good standing of a union with a nondiscriminatory
hiring hall and are exempt from work registration requirements under §815.20(8)(B);
and
(3) Individuals performing jury service.
Section 815.28(a)(1)(E)(iii) - (v) Relates to Exemptions from Work Search
Requirements for Individuals on Temporary Layoff with a Definite Date to Return
to Work.
The Commission proposes to amend §815.28 in order to explicitly exempt
from the rule's requirement individuals temporarily laid off but with a definite
date to return to work. These individuals are already exempt from the work
registration requirement under §815.20(8)(A). The Commission proposes
to grant exemptions when:
(a) the individual is on temporary layoff with a definite return to work
date, which is eight weeks or less from the layoff date;
(b) the individual is on temporary layoff with a definite return to work
date which is no more than 12 weeks from the layoff date, provided that written
confirmation of the return to work date is received from the separating employer;
and
(c) the individual is on temporary layoff that is more than 12 weeks due
to a disaster or other extraordinary circumstances, provided that a waiver
from work search requirements is granted by the Agency Executive Director.
The Executive Director's decision in such cases will be subject to review
in any benefits appeal where ineligibility results from the decision. The
requesting employer will be made a party of interest to any such appeal.
While the purpose of work search requirements is to move unemployed workers
toward reemployment as quickly as possible, exemptions are warranted in the
case where workers are merely temporarily laid off. This is because employers
have a substantial investment in their trained employees. The Commission's
work search rules should not operate to move the trained worker away from
the previous employer or to separate the worker from his soon-to-be reinstated
job opportunity. Employers should not be deprived of their investment because
of a requirement for the employee to seek other work simply because economic
conditions dictate a temporary workforce reduction. Additionally, the claimant
worker should not be required, because of attendant work search requirements,
to relocate or change occupations during the period between a temporary lay
off and the return to work date. Loss of trained workers may also delay the
economic recovery of a business, which may in turn delay the recovery of the
Texas economy as a whole. An exemption in these cases from work search requirements
is therefore in the best interests of the temporarily laid off workers, their
employers, and all Texans.
Given the significant interest in exempting workers temporarily laid off
and the interest in re-employing claimants as soon as possible, the Commission's
longstanding practice is to limit work search exemptions to eight weeks unless
the claimant's employer requests a longer exemption period of up to 12 weeks.
Employer requests for exemptions of more than 12 weeks are granted only after
administrative review. This procedure was developed as a balance between the
two objectives:
(1) rapid reemployment of claimants, and
(2) assisting employers retain skilled workers in order to rapidly recover
from economic dislocations.
§815.28(a)(1)(E)(vi), Exemption from Work Search Requirements for
Individuals who are Members in Good Standing of a Union with a Nondiscriminatory
Hiring Hall
The Commission further proposes to amend §815.28 to explicitly exempt
from the general work search requirements any UI claimants who are members
in good standing of a union with a nondiscriminatory hiring hall since they
are exempt from work registration requirements under §815.20(8)(B).
A hiring hall is best defined by its function which is to match workers
and jobs. Traditionally, it is a physical location where employers seek workers
and workers come to seek employment. Since 1934, Merriam-Webster has defined
hiring hall more specifically as "a union-operated placement office where
registered applicants are referred in rotation to jobs." The key elements
of the hiring hall are a list of job assignments maintained by the union business
agent, and a "daybook" listing of available employees. Most unions with hiring
halls maintain the daybook where active members must sign, in person, at least
once a week. Many also require a daily call-in. Generally, laid off workers
sign the daybook to indicate their availability and, with some allowances
for seniority or experience, are referred to new job assignments on a first
come, first served basis. In effect, the labor organization performs ongoing
work search and job placement activities on behalf of its members.
In many cases, exclusive contracts between labor and employer organizations
require that workers supplied by the union complete necessary training, attain
certain experience levels, or achieve other qualifying standards. To meet
these contractual obligations, the labor organizations have established hiring
halls, and members are generally required by their union, as a condition of
membership, both to accept hiring hall referrals and to refuse employment
offers which are not made through the union hiring hall.
Employers frequently provide members' insurance and/or retirement benefits
through the union. The bylaws or dispatching rules of union hiring halls spell
out the hall's purpose and procedure with respect to such benefits. Depending
on the union, some members must work at least 1,000 to 1,500 hours per year
to maintain insurance benefits and to qualify for a year of service toward
retirement. Seeking employment with nonunion employers, and failing to seek
work through the hiring hall according to union rules or bylaws could therefore
cause members to lose their union membership, insurance, vacation, and pension.
The Commission's longstanding policy of exempting from work registration
and work search requirements individuals who are members in good standing
of a union with a nondiscriminatory hiring hall is grounded in federal and
state law. In the Landrum-Griffin Act, 29 U.S.C. §151(d), 29 U.S.C. §401
and elsewhere, the U.S. Congress guaranteed workers the right to organize,
set out structural standards for labor organizations, and required that mutual
activities such as hiring halls must be respected. The Texas Labor Code §207.008(b),
mirroring language of the Federal Unemployment Tax Act (FUTA), 26 U.S.C. §3304(5)(c),
states that UI benefits may not be denied "to an otherwise eligible individual
for refusal to accept new work if... as a condition of being employed, the
individual is required to join a company union or to resign from or refrain
from joining a bona fide labor organization."
In recognition of all of these factors, the Commission has historically
exempted this classification of claimants from work search requirements. The
Commission has previously determined that claimants who usually obtain work
through a union meet the requirement of making an active, independent search
for work if each of the following conditions is met:
(1) the claimant is a union member in good standing; and
(2) the union maintains a nondiscriminatory hiring hall, as that term is
defined by the Landrum-Griffin Act. The Commission finds that these conditions
warrant continued exemption from the work search requirements.
The Commission estimates that the number of claimants in this classification
represent only 1.71 percent of all regular Texas UI claimants. Further, claimants
who meet this exemption tend to collect benefits for fewer weeks than other
claimants and are less likely to exhaust their benefits.
Although the Commission finds that an exemption is appropriate for these
claimants, the Commission emphasizes that any UI claimant who is a member
in good standing of a union with a nondiscriminatory hiring hall must maintain
contact with and use the placement services of the hiring hall.
§815.28(a)(1)(E)(vii), Exemption from Work Search Requirements for
Individuals Actively Engaged in Jury Service
The Commission proposes to amend §815.28 to explicitly exempt from
the rule's requirements individuals performing jury service for a period of
three days or longer, with such exemption to apply only to weeks in which
the claimant is actively performing jury service.
The Commission has taken the position that to hold a claimant unavailable
during a period of jury service would be to penalize the claimant for complying
with the claimant's legal citizenship obligation. The Commission will not
force a claimant to choose between receipt of unemployment benefits and violation
of the claimant's statutory obligation to serve on a jury.
§815.28(a)(1)(F), Applicability of Work Search Requirements to Certain
Classifications of Claimants
The Commission proposes to amend §815.28 to add a new subsection (a)(1)(F),
clarifying that Work Search requirements shall apply to:
(a) recipients of state extended UI benefits, who are required to actively
seek work under Texas Labor Code §209.043;
(b) recipients of federal extended unemployment benefits, except that if
the federal legislation establishing such benefits or administrative directives
for administering such benefits includes work search requirements, which are
in conflict with those established by §815.28, the federal requirements
or administrative directives shall apply; and
(c) individuals who are engaged in efforts to establish themselves in a
self-employment venture.
Texas Labor Code §209.043, Requirement to Seek Work, provides work
search requirements for claimants receiving Texas (state) extended unemployment
benefits. In addition, some national legislation providing federal extended
unemployment benefits has included work search requirements, which may conflict
with the provisions of §815.28. Section 815.28 does not now specifically
address the applicability of the rule to claimants receiving either state
or federal extended benefits. The Commission amends the rule to clarify that
the work search requirements apply to these claimants.
Similarly, the Commission has previously determined that the work search
requirement under §815.28 does not exempt claimants who are establishing
a self-employment venture for themselves. Again, the Commission amends the
rule to explicitly provide that the requirements apply to these claimants.
The Commission's Appeals Policy and Precedent Manual currently includes
a work search component at AA 160.05, "General Statement of Commission Policy
on Work Search." The Commission intends that the amended rule once adopted
shall supersede the General Statement of Commission Policy on Work Search
contained in the Appeals Policy and Precedent Manual at AA 160.05. It also
will supersede Appeal No. 2925-CA-77, which is digested in the Manual at AA
160.10 and at 415.05; Appeal Precedent Number 1994-CA-0581, digested in Appeals
Policy and Precedent Manual at AA 370.10; and any other provisions in the
Appeals Policy and Precedent Manual in conflict. The Commission intends to
rescind the precedents in an open meeting.
§815.109. Payment of Contributions and Reimbursements.
The Commission proposes to amend §815.109(e), by re-lettering subsection
(e) to (f) and subsection (f) to (g) and inserting a new subsection (e). This
amendment clarifies when an additional tax resulting from a chargeback adjustment
is due, and when interest will begin to accrue on any unpaid balance. The
Commission intends that if, for example, an employer receives a notice of
additional taxes due, which is dated March 15, the due date for payment will
be May 1, the final date for payment without further penalty will be May 31,
and interest will begin to accrue on June 1.
UI tax rates are calculated annually during the fourth quarter and are
effective January 1 of the following year. Chargebacks are the primary component
in an employer's experience rating, which in turn is the primary factor determining
the employer's annual tax rate. Annual tax rates, including prior year tax
rates, can be adjusted at any time during the year when chargebacks are adjusted
as a result of an appeal of a UI benefit decision.
When a claimant is initially disqualified for benefits but appeals the
decision and ultimately prevails, the employer's tax rate is recalculated
based on benefits paid to that claimant. It is not unusual for the Commission
to resolve such an appeal after the new year's tax rate notice has been mailed
and the employer has already paid taxes under that new rate. Generally, each
employer in the claimant's base period shares in the chargebacks proportionately
according to the wages earned by the claimant from each employer. This is
true unless a base period employer timely responds to the notice of chargeback
and is not chargeable for the benefits based upon a Commission determination.
However, when the employer is liable the chargebacks are posted to the employer's
account for the quarter in which they occurred. The employer's annual tax
rate is recalculated based upon the revised chargebacks.
Assessment of Interest. When the recalculated tax rate is higher than the
original rate, the employer is notified of the increase and of the additional
tax and interest due for each quarter affected. The interest is calculated
retroactively, based on the original due date of the quarterly report. Moreover,
the length of the appeal process sometimes causes the total period of adjustment,
including the interest assessment, to encompass several quarters in prior
years and to extend to the most recently filed quarter. This current policy
on interest assessments can produce a financial burden for affected employers.
Due dates for payment of tax are set by §815.109(a) which states,
in part, "contributions shall accrue quarterly and shall become due on the
first day of the month following the calendar quarter. They shall be paid
to the Agency on or before the last day of the month."
Exceptions to timely payment of tax due. Under §815.109(e), the Commission
has provided for extensions of up to 60 days beyond the required due dates
for payment of regular quarterly taxes. However, the rule does not speak directly
to due dates in the situation described above, where the amounts of tax due
(and interest charges) result from appeals decisions that occur considerably
later than 60 days after the original quarterly due date.
Interest is charged on taxes not paid by due dates. The Texas Labor Code §213.021(a)
states, in part "An employer who does not pay a contribution on or before
the date prescribed by the commission is liable to the state for interest
of one and one-half percent of the contribution for each month or portion
of a month that the contribution and interest payments are not paid in full."
There is no specific provision in statute or Commission rule addressing
the Commission's ability to accept payment in chargeback adjustment cases
without assessing interest. However, the Commission has often granted employers
in such cases an additional 30 days from the notice to pay without assessing
interest. The proposed amendment will clarify Texas Workforce Commission's
business practice and preserve it in rule. The proposed amendment also will
grant employers more flexibility by making the due date contingent upon the
date the Agency mailed the statement or letter notifying the employer of the
change in tax rate and additional tax due, rather than a fixed 30-day deadline.
Coordination with Stakeholders: Prior to proposing these rule amendments,
the Commission circulated a policy concept paper outlining the changes to
the Board chairs, members and executive directors, and the Texas Association
of Workforce Boards Policy Committee requesting feedback on the draft policy
changes. As §815.109 does not directly affect Boards, the Commission
determined that the concept review phase could be expedited. In addition,
the concept for amendments to §815.28 and §815.15 were discussed
on March 19, 2004, in a conference call with Board Executive Directors and
staff. While no written remarks were submitted, clarification of the Boards'
roles in the work search process and in other areas was requested and provided.
Randy Townsend, Chief Financial Officer, has determined that for each year
of the first five years the amendments will be in effect, the following fiscal
statements will apply:
There are no additional estimated costs to the state and to local governments
expected as a result of enforcing or administering the amendments;
There are no estimated reductions in costs to the state and to local governments
as a result of enforcing or administering the amendments;
There are no estimated losses or increases in revenue to the state or to
local governments as a result of enforcing or administering the amendments;
There are no foreseeable implications relating to costs or revenue of the
state or local government as a result of enforcing or administering the amendments;
and
Mr. Townsend has also determined that there is no adverse economic effect
on small businesses or individuals as a result of enforcing or administering
the amendments.
LaSha Lenzy, Director of Unemployment Insurance and Regulation, has determined
that for each year of the first five years the amendments are in effect, the
public benefits anticipated as a result of clarifying the rules are to:
(a) provide improved service to employers, UI claimants, and the people
of Texas;
(b) assist employers in retaining trained workers; and
(c) stabilize local economies by helping employers quickly recover from
short-term dislocations.
Mark Hughes, Director of Labor Market Information, has determined that
the proposed amendments would positively impact private employment by facilitating
employers' efforts to obtain and retain qualified workers. While the proposed
amendments are intended in part to stabilize local economies and facilitate
economic recovery by local businesses, the impacts are relatively minor in
broader economic context. Mr. Hughes does not expect any significant impact
upon overall employment conditions in the state as a result of the proposed
amendments.
Comments on the proposal may be submitted to John Moore, Office of the
General Counsel, Texas Workforce Commission, 101 East 15th Street, Room 608,
Austin, Texas 78778-0001, (512) 463-3041. Comments may also be submitted via
fax (512) 463-2220 or e-mail at John.Moore@twc.state.tx.us. Comments must
be received by the Commission within 30 days from the date this proposal is
published in the
Texas Register
. A Public
Hearing will be conducted if requested under Government Code §2001.029.
Subchapter B. BENEFITS, CLAIMS AND APPEALS
(2)
Advocacy plan--An action plan
developed to address the needs and quality of care issues of residents that
are developed at the state, regional and individual nursing home levels.]
(3)
] Assisted Living Facility--An
establishment, including a board and care home, that furnishes, in one or
more facilities, food and shelter to four or more persons who are unrelated
to the proprietor of the establishment and provides personal care services
under the scope of Health and Safety Code, Chapter 247.
(4)
Board--The Board on Aging
of the Texas Department on Aging. ]
(5)
] Certified staff ombudsman--An
individual who has successfully completed the required certification training
as prescribed by the Office and who has been recommended by the local ombudsman
entity and approved by the State Long-Term Care Ombudsman to serve as an advocate
for long-term care facility residents and who has been hired by the local
ombudsman entity as paid staff to participate in the administration of the
ombudsman program. A certified staff ombudsman shall be a representative of
the Office.
(6)
] Certified volunteer ombudsman--An
individual who has successfully completed the required certification training
as prescribed by the Office and who has been recommended by a local ombudsman
entity and approved by the State Long-Term Care Ombudsman to serve as an advocate
for long-term care facility residents and participate in the ombudsman program.
A certified volunteer ombudsman shall be a representative of the Office.
(7)
] Clients or recipients of services--Residents
of long-term care facilities.
(8)
] Contractor--The performing
entity in a contract with the Department. The word contractor when used in
this rule and related policies and procedures is synonymous with grantee or
other entities as defined by the Board, by rule or order.
(9)
] Conflict of interest--Status
of an individual applying to be a certified volunteer ombudsman must be revealed
to the Office of the State Long-Term Care Ombudsman and resolved prior to
service. A conflict of interest exists if an individual applying to be a certified
volunteer ombudsman or an immediate family member (first degree of consanguinity
or affinity) of that individual has any one or more of the following:
(10)
] Department--The Texas Department
of
[
on
] Aging
and Disability Services (DADS),
the
single state agency for Older Americans Act
(OAA)
programs.
(11)
] Friendly Visitor--A volunteer
who has a relationship with the local ombudsman entity but who does not participate
in complaint resolution. A Friendly Visitor receives orientation and training
as prescribed by the Office but does not receive certification, is not a representative
of the Office and shall not have access to resident records. This is an optional
program operated at the discretion of the local ombudsman entity.
(12)
] In-service--A planned educational
effort conducted or coordinated by professional staff or certified volunteers.
(13)
] Local ombudsman entity--An
area agency on aging or other entity, as defined by the Board, by rule or
order which is responsible for implementation of all aspects of the local
ombudsman program as defined in these rules.
(14)
] Long-term care facility--A
facility that is licensed or regulated or that
should
[
is
required to
] be licensed or regulated by the Texas Department of
Aging and Disability
[
Human
] Services.
(15)
] Managing local ombudsman--The
professional staff person at the regional level who directs the local ombudsman
program. A managing local ombudsman is a certified staff ombudsman and shall
be a representative of the Office.
(16)
] Nursing home--An institution
that provides organized and structured nursing care and service, and is subject
to licensure under the Health and Safety Code, Chapter 242.
(17)
] Office--The Office of the
State Long-Term Care Ombudsman, an independent division of the Texas Department
of
[
on
] Aging
and Disability Services
.
(18)
] Ombudsman intern--A volunteer
who has been admitted to the local training program as a potential certified
volunteer ombudsman.
(19)
Professional--Refers to an
individual who has obtained a four-year bachelor degree in aging-related areas
or human services, or has equivalent qualifying experience as a substitute
for a degree. Such substitution shall be consistent with the employing entity's
personnel policies.]
(20)
] State Long-Term Care Ombudsman,
also known as the State Ombudsman--The person designated by the [
Executive
Director of the
] Department as Chief Administrator of the Office of
the State Long-Term Care Ombudsman, in accordance with the requirements of
the Older Americans Act [
, regarding expertise and experience.
]
The State Ombudsman is accountable to the [
Executive
] Director
, Center for Consumer and External Affairs
of the Department for program
and personnel matters.
assure
] the development and operation of an ombudsman program, which
advocates for the rights of residents and their families to receive the highest
quality of care and quality of life in long-term care facilities and which
provides services to assist in protecting the health, safety and welfare of
residents.
assure
] that
Office representatives (employees or volunteers who represent
an entity designated by the Department
[
managing local ombudsmen
and certified staff ombudsmen
] shall be granted access to long-term
care facility residents and their records if consent of the resident or the
legal representative of the resident is obtained or as permitted by the Older
Americans Act and state statute [
as defined in Ombudsman procedures
].
defined
] by the
Department
[
Board
]. The local ombudsman entity shall:
the procedures required
] by the Office:
placement
]
or general requests for assistance;
have a visible and active presence in long-term care facilities sufficient
for clients and families to have access to ombudsman services that promote
or improve quality of care and that result in the timely identification and
resolution of complaints and concerns. In addition to regular visits by certified
ombudsmen, each licensed nursing home shall be visited a minimum of one time,
and more often as necessary, each year by the managing local ombudsman or
a paid staff ombudsman of the local ombudsman entity. The local ombudsman
entity may establish affiliations with other volunteer groups to exchange
information and identify advocacy needs to support facility coverage
].
Texas Department of Human
Services
] and the Texas Department of
Family and
Protective
[
and Regulatory
] Services; and
meet the requirements of a professional.
In addition, two years of direct services to the elderly or experience in
ombudsman services, advocacy, dispute resolution, or volunteer management
are preferred.
]
(3)
have adequate staff to manage
all aspects of the program and shall designate the managing local ombudsman.]
(4)
] establish and maintain a complaint
management system that at a minimum shall:
equitably
] resolving
total
complaints
that results in a minimum percentage, as defined
by the Office, of complaints resolved in an objective and impartial manner
;
(5)
] establish
mechanisms
[
a process
] to identify and remove conflicts of interest
[
as prescribed in procedures established by the Office
];
(6)
] establish and maintain a volunteer
management system,
if the local program uses volunteers,
in which
the local Ombudsman entity shall:
so that the total number of certified staff and
volunteer ombudsmen are at least the number prescribed by the Legislative
Budget Board of the Texas Legislature
];
through
the completion of an application that contains all minimum information required
by the Office to include
] the completion of a criminal background check
of all volunteer and paid staff ombudsmen prior to certification. Supervise
the completion of certification training and internship; make recommendation
for certification of individuals to the
Office
[
State Long-Term
Care Ombudsman
] and assign certified ombudsmen to appropriate long-term
care facilities;
each representative of the Office
];
(7)
]
ensure
[
assure
] that residents, families, and complainants have
regular and timely
access to ombudsman services [
during the normal business week
] at no cost through a toll-free number or acceptance of collect calls.
[
with acknowledgement of the receipt of the complaint within one business
day. The telephone number of the local ombudsman entity and the managing local
ombudsman shall be listed under the area agency on aging listing in accordance
with current Department policy;
]
(8)
] support the
development
[
formation
] of family and resident councils [
in each
facility of the region, in an effort to provide advocacy resources to promote
quality of care
];
(9)
] provide informational resources
relating to quality of care and resident-centered care to residents, family,
and
facility
staff [
of each nursing home in the region
].
Be available to provide in-service training in long-term care facilities in
the region. [
Certified volunteer or paid staff ombudsmen may conduct
such in-service training
];
(10)
] coordinate with regional
administrators or their designees of the
Department's
[
Texas
Department of Human Services
] Long-Term Care Regulatory [
Services
] division serving the region at least quarterly, and the Texas Department
of
Family and
Protective [
and Regulatory
] Services as
needed, to develop efficient referral, communication, and problem-solving
procedures;
(11)
] participate in
a minimum
percentage, as defined by the Office, of
survey activities with the
[
Texas
] Department [
of Human Services
] in accordance
with
requirements established by the Office
[
the cooperative
agreement between the Department and the Texas Department of Human Services
].
(12)
] submit program performance
and other reports in accordance with requirements established by the Office
and the Department;
and
(13)
develop and implement individual
nursing home advocacy plans followed by development and implementation of
a regional advocacy plan that is based on an analysis of individual nursing
home advocacy plans and other sources of information that supports the achievement
of the highest levels of quality of care and quality of life for residents;]
(14)
] promote local awareness
of the ombudsman entity through the frequent use of local and regional resources,
including the media, in order to provide visibility to the program
.
[
, to include listing the phrase, "Advocate for Nursing Home Residents," in
all brochures, publications, and media activities; and
]
(15)
encourage coordination with
citizen, membership and advocacy organizations to support quality of care
and increase community involvement with and awareness of long-term care services.]
certified
] volunteer
who has met the requirements of the Office
[
ombudsman
] shall execute the purposes of the ombudsman
program as outlined in this rule and under the supervision of the managing
local ombudsman.
Part 20.
TEXAS WORKFORCE COMMISSION